论行政自由裁量权及其程序控制

An Analysis of Administrative Discretion and its Procedure Control

随着社会的发展,行政自由裁量权的合理、适度行使对法治有重要的促进和保障作用,但是行政自由裁量权在现代国家权力中的扩张使其在运行中带来了一些负面效应,必须加以控制。行政程序为行政行为设置一种安全的运行模式,使得行政过程公开,公正,合理;并且通过相对人程序性参与,保持行政权力与相对人权利的平衡,限制行政行为的恣意、专断。为了发挥行政程序的有效作用,通过对我国行政程序立法现状的分析,研究得出行政程序立法必须摒弃"重实体,轻程序"的传统观念,树立"程序正义"的立法理念,尽快制定一部统一的行政程序法。

With the social development, reasonable and moderate exercise of administrative discretion plays an important role in promoting and safeguarding rules of law. However, the expansion of administrative discretion in the modern state power has brought some negative effects during its operation, which must be controlled. Administrative procedures set up a safe operation mode for administrative behavior to make its process open, fair and reasonable, and keep a balance of administrative power and counterpart rights and restrict the arbitrary of administrative behavior through counterpart＇ s procedural involvement. In order to play the effective role of administrative procedures, based on the analysis of the current legislation of the administrative procedure, the paper comes to the conclusion that the administrative procedure legislation must abandon the traditional concept of ＂substantiality overweighing process＂, establish the legislation idea of ＂procedural justice＂ and formulate a unified administrative procedural law as soon as possible.